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U.S. Second Circuit Court of Appeals Holds That Dr. With Staff Privileges Is Employee Under Title VII

By Harvey Randall, Esq.

U.S. Second Circuit Court of Appeals Holds That Dr. With Staff Privileges Is Employee Under Title VII
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2008, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

Salamon v. Our Lady of Victory Hospital, ___F.3d ___(2d Cir. Jan. 16, 2008), is an important decision holding that a physician who only receives staff privileges is an employee under Title VII. She therefore, is allowed to continue with her sex harassment case against the hospital.
In a lengthy opinion, the court applied the common law agency test which the Supreme Court held was applicable under ERISA in Nationwide v. Darden, 503 U.S. 318 (1992) and a Copyright matter in Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989). Applying this multi-factored test, which focuses on the right of the employer to control the work, the plaintiff was able to establish that she was an employee even though she received no direct remuneration.

Although as a doctor, plaintiff had a significant amount of professional independence, the court found that the hospital controlled the details and methods of her work. She was subject to surveillance of her professional performance, subject to quality control standards, and was required to schedule procedures at certain times to maximize hospital profit. Additionally, plaintiff was subjected to "reeducation" concerning the methods she utilized with respect to how she arrived at certain diagnoses and recommended treatment.

In footnote 10, the court indicated that an employee might be required to receive some form of remuneration in order for a hiring to occur and that a hiring may be necessary for employee status. However, the court does not decide that issue because the parties treated that issue as part of the Darden/Reid common law analysis. I am not sure that I understand the courts reasoning in this regard.

One of the more interesting things about this case is that the plaintiff appeared pro se, but the court appointed a large law firm, Duane Morris, to appear as Amicus Curiae to the plaintiff. In a footnote, the court thanked the law firm, but did not explain why it appointed Amicus. I have never seen that before.

There is a lot more to this decision concerning professional judgment and peer review standards that may be of interest to scholars and attorneys.

Mitchell H. Rubinstein

Full post as published by New York Public Personnel Law on February 01, 2008 (boomark / email).